ALJDEC decisions subject to certification as final

2012A-6-ROC · Registrar of Contractors · 2012-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 15, 2012, at 1:00 p.m. APPEARANCES: Complainant appeared on his own behalf. Respondent appeared through its authorized representative, Tony Armendariz. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of License No: K-39.254969-D issued by the Registrar of Contractors. 2. This is a residential matter in which Solar Bear LLC (“Solar Bear”) provided Complainant with a proposal to replace and upgrade Complainant’s existing HVAC system for Complainant’s residence located at 6414 N. Tierra de Las Catalinas, Tucson, Arizona, 85718.[1] 3. Complainant accepted Solar Bear’s proposal and entered into a written contract with Solar Bear for the installation of the new HVAC system.[2] 4. Complainant was disappointed with the performance of the newly installed HVAC system and repeatedly complained to Solar Bear about the inefficiency of the new HVAC system. 5. Solar Bear failed to resolve the problems with new HVAC system, and Complainant requested an inspection of the new HVAC system by Conservation Services Group. 6. Conservation Services Group inspected the new HVAC system and provided Complainant with a written report and recommended several HVAC companies that would inspect the installation of the new HVAC system.[3] 7. Complainant then filed a formal Complaint against Solar Bear with the Registrar of Contractors. 8. Complainant requested Hamstra Heating & Cooling, Inc. (“Hamstra”) to perform an inspection of his newly installed HVAC system. Hamstra performed the requested inspection and provided Complainant with a written report.[4] 9. Complainant provided the assigned Agency Inspector with a copy of the Hamstra written report, which was treated as an Addendum to the Complaint. 10. Pursuant to the filing of the formal Complaint and Addendum, the assigned Agency Inspector conducted an on-site inspection of Complainant’s HVAC system on January 18, 2012. On January 19, 2012, the assigned Agency Inspector issued a written Corrective Work Order directing Solar Bear to perform designated corrective work on Complainant’s HVAC system. 11. The Corrective Work Order provides, in pertinent part, as follows: The jobsite inspection found that this contractor failed to pull a mechanical permit. Apparently, the homeowner obtained a permit on 12/29/11 and Pima County inspected the AC replacement on 12/30/11. The Pima County Inspection Notice inspection results show approved however the Inspector requested that the “return air under new furnace, freon pipe outward to furnace must have airtight (seal)”. [sic] (Upon returning to the office, I searched the Pima County website and this permit has not been approved and finaled.) [sic] Alan Allison, employee for Solar Bear LLC, agreed to fulfill all of Pima County’s code requirements and obtain all approved inspections from Pima County. The jobsite inspection also found that the large furnace and the small furnace closet make it difficult to visually inspect the furnace closet ceiling. I cannot confirm if the unit is drawing in air from the attic. Allison claims that this is acceptable because it is an existing condition. I disagree and if the closet ceiling is unsealed, it should be corrected. Temperature readings were taken at various registers including the downstairs bedroom during the jobsite inspection and they were within an acceptable range. This contractor is to fulfill all of Pima County’s code requirements and obtain all approved inspections from Pima County. If the furnace closet ceiling is unsealed, this contractor is to correct. No action is required regarding heat/air flow to downstairs bedroom. Addendum to original complaint (7 allegation items): 1. The condensate drain trap vent is under the floor in a negative pressure area and may cause condensate not to drain properly. Vent must be above floor. The jobsite inspection found the condensate drain trap and vent inside the return air plenum. During the jobsite inspection, Allison agreed to relocate the drain vent and trap. Contractor is to obtain all approved inspections from Pima County. 2. A water level detection device conforming to UL508 shall be provided that will shut off equipment served in the event that the primary drain is blocked. IRC code M1411.3.1. The jobsite inspection found no water level detection device installed. During the jobsite inspection, Allison agreed to install the water level detection device if Pima County requires. Contractor is to obtain all approved inspections from Pima County. 3. The under floor return plenum shall be tightly enclosed. Open stud spaces with blocking is [sic] NOT tightly enclosed. IRC 1601.4. The jobsite inspection found the plenum top/platform sealed. During the jobsite inspection, Allison agreed to seal the drywall to the studs and the sill plates to the floor if Pima County requires. Contractor is to obtain all approved inspections from Pima County. 4. The existing 25”x14” return filter grille is 50% undersized per ACCA Manual D. Manual D indicates a maximum of 300 FPM through return filter grille. This 3 ton system has air flow of 1200 CFM. Enclosed is a performance data sheet for a return filter grille. ACCA manual D is recognized industry standard. The jobsite inspection found a return air grille located at the front of the return air plenum. During the jobsite inspection, Allison agreed to install another grill [sic] at the side of the plenum. Contractor is to install according to manufacturer’s instructions. 5. Circuit breaker for indoor fan/coil unit is 45 amps. This should be 30 amps per manufacturer. There should also be a means of disconnect at fan/coil unit. Installation of Trane/American Standard BAYHTR1405BRKA required. The jobsite inspection found a 45 amp breaker in place marked furnace inside the electrical supply box. During the jobsite inspection, Allison claims that this breaker may be marked incorrectly and he agreed to investigate and correct. Contractor is to correct by appropriate means. 6. Mechanical room walls and ceiling are open to attic space. This is not energy efficient. The walls and ceiling should be air sealed to prevent hot air in summer and cold air in winter from entering uninsulated [sic] mechanical room. The jobsite inspection found that the large furnace and the small furnace closet make it difficult to visually inspect the furnace closet ceiling. I cannot confirm if the unit is drawing in air from the attic. During the jobsite inspection, Allison claims that this is acceptable because it is an existing condition. I disagree and if the closet ceiling is unsealed, it should be corrected. Contractor is to correct by appropriate means. 7. The low voltage wiring, at outdoor condensing unit, is run in unapproved flexible conduit. It must be run in sealtite to prevent moisture. The jobsite inspection found the low voltage wiring in an unacceptable condition. During the jobsite inspection, Allison agreed to correct. Contractor is to correct by appropriate means.[5]

12. On February 21, 2012, Complainant filed a letter with the Registrar of Contractors asking to add as an Addendum to his complaint that Respondent installed a TRANE condenser and not a heat pump outside his house. The Registrar of Contractors accepted the Addendum as being incorporated into the original Complaint Form dated December 30, 2011, and issued a Notice of Amendment.[6] 13. The assigned Agency Inspector testified that no pre-hearing jobsite was performed because Complainant had caused the HVAC unit installed by Solar Bear to be removed and replaced by another contractor.[7] 14. Complainant testified that Solar Bear missed the first deadline of February 3, 2012, because Solar Bear had to pull a work permit.[8] 15. Complainant stated that on February 16, 2012, Solar Bear began work on some of the items set forth in the Corrective Work Order. Solar Bear stopped performing corrective work on the system and left the corrective work on Complainant’s HVAC system unfinished.[9] 16. On February 21, 2012, Complainant then contracted with Hamstra to correct the remaining problems with the HVAC system as per the Corrective Work Order.[10] 17. Hamstra’s invoice of $3,431.37, for the corrective work required to fully comply with the terms of the Corrective Work Order, is found to be reasonable and justified under the circumstances. 18. Complainant’s actions, in causing an alternative licensed contractor to complete the corrective work on his newly installed HVAC system when Respondent had failed to comply with the terms of the Corrective Work Order despite having a fifteen (15) day extension, are found to be reasonable and justified under the circumstances. 19. Jeffrey Hamstra ( hereinafter, “Mr. Hamstra”) testified that he was asked to inspect Complainant’s HVAC system and that he found numerous areas of the HVAC system’s installation that were not code compliant and that failed to comply with manufacturer’s specifications.[11] 20. Mr. Hamstra stated that type of heating system installed in Complainant’s residence was not a heat pump and that it was not as energy efficient as a heat-pump.[12] 21. After the corrective work on the HVAC system was completed by Hamstra, Complainant decided to have the HVAC system installed by Solar Bear to be entirely removed and replaced with a new more energy efficient heat pump at a cost of $4,864.60.[13] 22. Solar Bear’s representative, Tony Armendariz (hereinafter, “Mr. Armendariz”), testified that Solar Bear installed the type of HVAC system specified in the parties’ contract. Mr. Armendariz stated that corrective work was being performed by Solar Bear when Mr. Allison left Solar Bear’s employment and left the corrective work on Complainant’s HVAC system unfinished. Mr. Armendariz acknowledged that there had been a lack of communication between the parties.[14] 23. The type of HVAC system installed by Solar Bear in Complainant’s residence is found to comply with the terms of the parties’ written contract.[15] 24. The parties’ dispute regarding Complainant’s claim for his cost of removing and replacing the entire HVAC system, after it had been corrected by Hamstra, is found to be a good faith money dispute which must be resolved, if at all, in a civil court of competent jurisdiction. 25. Mr. Armendariz acknowledged that Respondent had not fully complied with the terms of the Corrective Work Order despite the fact that Respondent was given thirty (30) days to fully comply with the terms of the Corrective Work Order. Mr. Armendariz also acknowledged that Solar Bear had failed to obtain a required building permit before beginning the construction project.[16] 26. Administrative notice is taken of Solar Bear’s prior license record as reflected on the Registrar of Contractors’ public website on June 28, 2012. Such prior license record reflects that License No. K-39.254969-D of Solar Bear LLC is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence supported findings which establish that Solar Bear failed to perform its construction work in a professional and workmanlike manner and departed from or disregarded manufacturer’s specifications and applicable building codes. This tribunal concludes that Solar Bear violated the charged provisions of A.R.S. § 32-1154(A)(2) (departure from or disregard of specifications and building codes) and A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. Credible testimony and evidence supported findings which establish that Solar Bear failed to fully comply with the terms of the Corrective Work Order despite the fact that Solar Bear was given an extra fifteen (15) day period in which to perform the directed corrective work. This tribunal concludes that Solar Bear violated the charged provisions of A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action).

5. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, License No. K-39.254969-D of Solar Bear LLC shall be suspended until the Registrar of Contractors receives and accepts written proof that Solar Bear has paid the sum of $3,431.37 by certified funds to Complainant as restitution for Complainant’s cost of causing a properly licensed contractor to correct Solar Bear’s work and fully comply with the terms of the Corrective Work Order. It is further recommended that if Solar Bear provides acceptable proof that it has paid the above described sum to Complainant, on or before the effective date of this Order, then the above provided License suspension shall not take place and that instead Solar Bear’s License shall be placed on disciplinary probation for a period of ninety (90) days. It is further recommended, in addition to the above-provided penalties, if any, that Solar Bear pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Solar Bear to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Solar Bear’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Solar Bear, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, July 5, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Complaint Form. [2] Exhibit No. A (Contract). [3] Exhibit No. D (Conservation Services Group Report). [4] Exhibit No. E (Hamstra Report). [5] Exhibit F. (Corrective Work Order). [6] April 2, 2012, Notice of Amendment. [7] 6/15/12 Hearing Record (hereinafter “H.R.”) at 13:54-14:12. [8] H.R. at 22:35-22:45. [9] H.R. at 23:36-26:07. [10] H.R. at 26:11-26:38. [11] H.R. at 36:04-37:02. [12] H.R. at 37:10-40:02. [13] Exhibit No. J (Hamstra Proposal & Contract). [14] H.R. at 47:36-49:29. [15] Exhibit No. A (Contract). [16] H.R. at 1:00:00-101:19.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826